"11. ...This part of the evidence of PW 6 would not be hit by the rule of exclusion of hearsay evidence. A decision of this Court deserves to be noted on this aspect. In the case of J.D. Jain v. State Bank MANU/SC/0427/1981 : AIR 1982 SC 673 of India a Bench of three learned Judges speaking through Baharul Islam, J. in the Report has made the following pertinent observations: (AIR p. 676, para 10 : SCC p. 148, paras 21 and 22)
"The word "hearsay" is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else. (See Stephen on Law of Evidence)
The Privy Council in the case of Subramaniam v. Public Prosecutor 1956 WLR 965, observed:
"Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made."
The term "hearsay" applies to both spoken or oral evidence and also has reference to what is written. Hearsay evidence is rejected on the principle that the best evidence obtainable should be produced as it is relatively trustworthy, whereas hearsay evidence poses difficulties for it derives value not from the witness himself, but on the veracity and competence of some other person whose version is not tested in the cross-examination.
50. For principle of hearsay to apply and reject an evidence, it must be shown that it was made by some other declarant other than the one testifying at the trial of hearing and the statement is being offered in evidence to prove the truth of the matter asserted. Therefore, even if the evidence is an assertion made by the declarant, it will not be hearsay until it is offered to prove the truth of what is asserted.
51. A statement which is not assertion, i.e., to state the truth declared and maintained, but only a statement of fact is not hearsay. A hearsay declarants non-verbal conduct may qualify as a "statement" for purpose of exclusion under the hearsay rule, if the conduct of the person intended by him as a substitute for oral or written verbal expression.(see, Matter of Cherl H., 2 Dist. 153 CA 3d 1098). Pertinently, in case of self-generated data or information there is no declarant as such who is asserting a fact.
52. Evidence may be offered for different purposes. The same evidence can be treated as hearsay and non-hearsay depending upon its relevance, i.e., whether it is relevant for a substantive truth or for some other purpose. For example, when person A meets person B and speaks to him about an occurrence, testimony of person B to the said effect would not be hearsay, but may become hearsay if a party seeks to rely upon facts stated by person A implicating a third person. Thus, we must notice and record the difference between a "factum of statement" and "truth of a statement". The said distinction has been recognised and accepted in several pronouncements in J.D. Jain versus State Bank of India, MANU/SC/0427/1981 : AIR 1982 SC 673, Manilal Navavati versus Sushila Mahendra Nanavati, MANU/SC/0192/1964 : AIR 1965 SC 364 and S.R. Ramaraj versus Special Court, Bombay, MANU/SC/0600/2003 : (2003) 7 SCC 175. Thus, electronic record produced as a statement as a tangible in form of a CD, print out on paper, etc. as a fact in itself, must be distinguished from electronic record, which is produced to prove truth of the matter it asserts or correctness of contents for the latter postulates adjudication of veracity and credibility of the information by the person who has made a statement offering or producing the document for its truth.
53. In view of the aforesaid discussion, information memorised as business record or records maintained in common course of events are not treated as hearsay even if the maker lacks personal knowledge of the facts or events. The document should be prepared in normal course of business must have been at or near the time of events it records and should have been made in normal course of business activities or events. Sub-section (4) to Section 65B postulates that the certificate should be given by a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities. If the said conditions are satisfied, it promotes and establishes the trustworthiness. In such cases, presumption of fact regarding genuineness and authenticity of the content can be invoked at the discretion of the court under Section 114 of the Evidence Act.
54. In Anwar P.V. (supra) in paragraph 1 itself the Supreme Court noticed the difference between relevancy and admissibility, which is examined at the initial stage; and genuineness, veracity and reliability of the evidence, which is seen by the court subsequently. Thus, the ratio and dictum in Anwar P.V. (supra) is based and predicated on the difference between admissibility and veracity or evidentiary value. The Supreme Court dealt with the aspect of admissibility in strict legal sense, not to be confused with evidentiary value or correctness of contents. Of course, when the conditions mentioned in Section 65B are satisfied, in terms of Section 114 of the Evidence Act, the court may presume existence of certain facts for the computer output would have data and information collected or derived in common course of human conduct and in public and private business.
55. In terms of sub-section (1) to Section 65B, original evidence need not be produced when conditions of Section 65B are satisfied. The computer output in relation to the information and computer in question are admissible as secondary evidence, when certificate under Section 65B is produced. However, Section 65B nowhere states that the contents of the computer output shall be treated as the truth of the statement. Section 65B deals with admissibility of secondary evidence in the case of "electronic records" and not with the truthfulness or veracity of the contents. However, when a certificate under Section 65B is produced the Court may presume or form a prima facie opinion, which is rebuttable and may not be accepted.
56. Electronically generated record is entirely a product of functioning of a computer system or computer process, like call record details or a report generated on a fax, which shows the number from and to which the fax were sent, time, etc. is generated electronically. It does not contain any assertion. Therefore, as noticed above it is not hearsay. These are not writings made by a person (see United States versus Khorozian, 333 F. 3d 498, 506). Normally non-assertive conduct is more reliable, provided there has been no fraud and interpolation in the preparation of the record. Computer generated telephone records are not similar to a statement by a human declarant and, therefore, cannot be treated as hearsay and the credibility and evidentiary value is determined on the reliability and accuracy of the process involved. Ergo, in these cases when conditions of Section 65B are satisfied, the probative value or weight can be substantial of course, subject to verification as to the credibility and integrity of the contents.
57. We have already referred to the distinction between factum of a statement and truth of a statement and the concept of presumption of memorandum or records maintained in normal course of business and the credibility or trustworthiness of electronic records. However, it must be understood that mere admission or admissibility of the electronic record would not mean that the contents of the electronic record have been proved beyond doubt and debate and are automatically proved when the document is marked exhibit. Mere marking of a document as exhibit does not dispense with the proof of its contents (see Sait Tarajee Khimchand versus Yelamarti Satyam, MANU/SC/0022/1971 : AIR 1971 SC 1865, Narbada Devi Gupta versus Birendra Kumar Jaiswal, MANU/SC/0862/2003 : (2003) 8 SCC 745 and Mohd. Yusuf versus D. and Another, MANU/MH/0106/1968 : AIR 1968 Bombay 112). Provisions of Section 65 of Evidence Act are apposite on the said legal principle and reference can also be made to Sections 91 and 92 of the Evidence Act. The latter sections deal with exclusion of oral evidence by documentary evidence in certain cases and in which cases oral evidence can be led even when there are documents recording terms of contract, grant or any other disposition of property or when a matter is required by law to be reduced to a form of a document. The effect of the aforesaid provisions is that when a certificate under Section 65B authenticates the computer output, it will only show and establish that the computer output is the paper print out or media copy, etc. of the computer from which the output is obtained. The court has still to rule out when challenged or otherwise, the possibility of tampering, interpolation or changes from the date the record was first stored or created in the computer till the computer output is obtained. The focus over here is not so much on the creation of the out-put as stipulated under sub-section (2) to Section 65B, but rather on the preservation and sanctity of the record after it was originally created. It extends beyond identification of the particular computer equipment and the process or equipment used for computer output, etc. It would relate to the policies, procedures for use of the equipment that stored the said information since creation and data base and integrity of the same. Questions which would arise and have to be answered is whether data base was protected and had no or limited access, which permits modification/alteration; whether the data base could be wrongly lodged or created or could be transferred or changed when the data base was transferred and stored in the backup systems. These are questions which are pertinent and have to be examined to ascertain whether or not there was possibility of change, alteration or manipulation in the initial or original data after it was created. The courts must rule out that the records have not been tampered and read the data or information as it originally existed. These are aspects which are not codified as such, for probative value is examined on the case to case basis keeping in mind the relevant facts.
Crl. A. 711/2014
Decided On: 24.11.2015
Kundan Singh Vs. The State
Hon'ble Judges/Coram:
Sanjiv Khanna and R.K. Gauba, JJ.
Citation: MANU/DE/3674/2015
